Episode Details

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione take on a provocative argument from The New Republic: Is the Supreme Court weakening Congress and creating a more powerful presidency?

Mark and John give author Matt Ford credit for a thoughtful and well-researched article—but think he draws the wrong conclusion from much of the evidence.

They examine major Supreme Court decisions including Loper Bright/Relentless, SEC v. Jarkesy, Cargill v. Garland, Seila Law, and Trump v. Slaughter and argue that the Court's recent jurisprudence is better understood as an effort to restore the constitutional separation of powers.

The president should control the executive branch. Congress should make the laws. Courts should exercise judicial power. And when Congress gives the executive branch too much discretion, the solution isn't to blame the courts for presidential power—it's for Congress to reclaim its constitutional responsibilities.

Mark and John also discuss presidential removal power, administrative adjudication, jury trials, emergency powers, presidential immunity, and why Congress may need to revisit decades-old statutes that hand enormous discretion to the executive branch.